New York Lawyer's Legal Updates

How To Obtain An H-1B Work Visa

After an employer has obtained an approved Labor Condition Application (LCA) (see here) , it is time to file an H1B petition for the foreign worker. The H-1B visa allows a foreign national to accept professional jobs with the US employers.

The H1B petition should be filed as soon as possible: on the first day (or close to it) when the USCIS allows for filing of the H1B petitions, which is April 1 of the year prior to the fiscal year when the foreign worker will start his or her employment. For example, to start work on October 1, 2014, the petition must be filed on or about April 1, 2014.

It should also be noted that there is a limit of 65,000 H-1B visas for those holding Bachelor’s degree or its equivalent, and an additional 20,000 reserved for foreign nationals that hold advanced, Master’s degrees. During some years, the number of submitted petitions exceeds the number of available visas. Then, the government establishes a "lottery" and randomly selects petitions that would be counted towards the H1B quota. The petitions that were not selected would be returned to the filers.

An approved H1B petition, allows a foreign worker to obtain an H1B visa or change status to an H1B one. Once obtained, H1B status will be valid for up to three (3) years. A foreign worker may change employers. Please see: H1B transfer

Usually, an H1B employer will also sponsor a foreign worker for permanent residency. Extensions of the H1B are available for an additional maximum of three (3) years giving a total maximum H-1B status of six (6) years. Spouses and children of H-1B individuals may also receive a status of H-4 Dependent. However, for those employees who are being sponsored for a green card, extensions are available during the time of the pendency of their permanent residence applications in one or three years increments depending on the stage of the process.

To start an H1B process, an attorney will have to have:

Professional job offer.

Employer Attestations on a Labor condition application (LCA).

Proof of the lack thereof labor dispute(s) at the worksite for the occupation (i.e. strike or lockout).